Umrao and anr. Vs. Niadar and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/473595

Court

Allahabad

Decided On

Jul-30-1928

Judge

Bennet, J.

Reported in

111Ind.Cas.748

Appellant

Umrao and anr.

Respondent

Niadar and ors.

Cases Referred

Sarup Lal v. Lala

Excerpt:u.p. land revenue act (iii of 1901), section 233(k) - partition proceedings and records--civil courts, jurisdiction of. - .....village was the subject of a partition case in the revenue courts and under section 118 of the land revenue act the partition officer made the following entry in the partition khasra for plot 169-2. 2. after the preparation of the final partition khasra in november, 1921, the plaintiffs put in an application to the revenue court to the effect that in spite of their efforts the entry against this number in the final khasra was incorrect. the revenue court called for reports but did not pass any order for correction of the entry. accordingly the plaintiffs came to the civil court asking for a decree for actual possession of this number on the ground that in january, 1920, there was a general order of the partition officer to the effect that new constructions during the course of the.....

Judgment:

Bennet, J.

1. This is a second appeal from a judgment of the learned Additional District Judge of Meerut in appeal upholding the decree of the Additional Munsif awarding possession to the plaintiffs-respondents of a plot of land No. 169-2 area 13 biswansis. This village was the subject of a partition case in the Revenue Courts and under Section 118 of the Land Revenue Act the partition officer made the following entry in the partition khasra for plot 169-2.

2. After the preparation of the final partition khasra in November, 1921, the plaintiffs put in an application to the Revenue Court to the effect that in spite of their efforts the entry against this number in the final khasra was incorrect. The Revenue Court called for reports but did not pass any order for correction of the entry. Accordingly the plaintiffs came to the Civil Court asking for a decree for actual possession of this number on the ground that in January, 1920, there was a general order of the partition officer to the effect that new constructions during the course of the partition could not be considered as giving the occupier a title to the land on which these constructions had been made. In the quras there is an entry against this number that a new gher (cattle enclosure) had been constructed. In a local inspection the partition officer noted that on this number a new construction stood as had already been entered in the remarks column of the khasra. The Civil Courts of first instance and first appeal have taken upon themselves the duty of correcting the partition khasra. I consider that the duty of the Civil Courts in regard to partition proceedings and records is limited to the interpretation of those records, and that Civil Courts are not entitled to correct those records other than as provided in Sections 111 and 112 of the Land Revenue Act. Section 233 of the Land Revenue Act III of 1901, bars any proceeding in the Civil Court with respect to '(k) Partition or union of mahals except as provided is Sections 111 and 112.'

3. For the appellants reference has been made to the Full Bench ruling in Sarup Lal v. Lala 42 Ind. Cas. 589 : 15 A.L.J. 757 : 39 A. 707 (F.B.). On page 760 Page of 15 A.L.J.-- [Ed.] it is stated:

It is clear from these provisions that if the site of a house occupied by a co-sharer be allotted to the share of another co-sharer that fact alone would not deprive the owner of the house from retaining it with the building thereon. His liability would be to pay rent for the site on which the building stands. The presumption would be that where a partition has been effected and the site of the house of one co-sharer has been allotted to the share of another co sharer the owner of the house is to retain possession of the house. In the present case the same presumption arises. The mere fact that rent was not assessed cannot deprive the owner of the house of his right to it.

4. I consider that in the present case the Civil Courts have gone beyond the limit of their jurisdiction.

5. Accordingly I allow this appeal and set aside the decree of the lower Appellate Court in favour of the plaintiff-respondents and dismiss the suit of the plaintiff-respondents with costs in all Courts.